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12 d’abr. 2019

By Ernesto Ekaizer: The five reasons why Marchena will not opt for rebellion

Here is an English translation (I hope the author and the paper do not mind) of an article by ERNESTO EKAIZER: "Les cinc claus per les quals Marchena no apostarà per la rebel·lió".
Click here if need be to access the whole text

The five reasons why Marchena will not opt for rebellion

ERNESTO EKAIZER

The dynamics into which the trial has moved respond to the fact that the due is cast: as regards the evidence, none will be decisive or fundamental.

The original plan - 'wishful thinking' - was that on Friday, April 12, the oral phase of the trial would be completed, to allow the prosecution and the defence to draw up their final conclusions and to present them in the last week of the month. The desire was to then issue the "ready for judgment", before the pre-campaign of the May 26, 2019 municipal, regional and European elections.

It was an impossible project, with more than 500 testimonies planned to testify, even with the usual waivers for some of them, in addition to the documentary and expert phase of the trial.

And, in addition, if that were not enough... on top of the elections on 26 May, the early general election on 28 April has been added.

But the dynamics into which the trial has moved respond to the fact that
the due is cast: as regards the evidence, none will be decisive or
fundamental.

If by chance we look at television we will see that there is a judge in the centre of the court that ceaslessly types on the computer. No, he is not the minutes secretary. It is none other than the president of the court, Manuel Marchena, who is working painstakingly on the narrative of the facts that will serve as a basis for his presentation.

The first reason why Marchena will not propose in his paper a condemnation for the crime of rebellion is straightforward: the violence required - the typical nature of the crime - has not been present until now in the trial... nor will it be. That is a very powerful reason.

"The idea that small acts of violence or confrontations that when added up will eventually form a public, violent uprising, as described by the law, is wrong. The effort to describe these situations, as we are seeing, cannot manage to fill the gap: the public, violent uprising", the professor of Criminal Law at the University of Castilla-La Mancha Nicolás García Rivas, who wrote his thesis on the crime of rebellion, pointed out to ARA.

García Rivas is one of more than 120 full professors and lecturevs in criminal law who, in November 2018, signed the manifesto 'The banalization of crimes of sedition and rebellion', about which Supreme Court prosecutor Javier Zaragoza said on February 13, 2019, during the second session of the oral hearing: "15% of the professors signed, and hardly the most prestigious among them".

Marchena, in his capacity as rapporteur, and the six judges with him, will face the same problem that the three German judges of the Schleswig-Holstein court in July 2018 already had to cope with.

They adopted, in having to address the crime of high treason, equivalent to that of rebellion in Spain, a German Federal Supreme Court resolution.

"For the general crime of coercion, the appropriateness of the means of coercion to motivate the threatened person to submit to the wishes of the perpetrator is not only a factual condition, but also a normative one; it does not apply if one has to wait for the threatened person to react to the threat with a prudent self-assertion", it says. It adds: "This normative assessment of the means of coercion cannot be dispensed with in the case of the offence of coercion of collegiate constitutional organs. So the coercive effect of violence or the threat of violence no longer apply to the extent that one can and have to expect from the constitutional bodies, due to their special obligation towards the general public, to resist situations of pressure also in the context of fierce political disputes. If the government of a federated state is forced to Comply with certain political demands through acts of violence against third parties or against property, these acts of violence only amount to violence within the meaning of article 105 of the Criminal Code [Punishable acts against constitutional bodies] if the pressure being exercised reaches such a high degree that a responsible government may feel compelled to give in to the demands of the perpetrators of violence so as to avoid serious harm to the community or to the citizens".

That is to say: we must keep the concept of appropriate violence.

In practice, it must be remembered that the government of Mariano Rajoy did not perceive any rebellion or sedition. The proof: it never considered, according to the certificates provided by Moncloa to the Supreme Court last February, proposing to Congress a declaration of the state of siege or to the National Security Council the application of the national security law.

In other words: the alleged acts that the Prosecutor's Office include in the crime of rebellion or the State Advocacy in that of sedition were defeated, so to speak, or controlled, by the application of Article 155 of the Constitution.

The second reason why the rapporteur will not opt for the crime of rebellion is the need to condemn with a penalty that does not scandalize the governments of the European Union and revive prejudice about the demons of the past in Spain.

And the third reason, obviously, is to prevent any negative reaction against the lack of proportionality by the European Court of Human Rights (ECtHR).

The fourth reason is an internal issue of the court itself.

We are facing a State ruling. The resolutions of the Supreme Court, from the admission of the State Prosecutor General's lawsuit to the decisions of the appeals chamber and the total support for judge Pablo Llarena's investigation, have presented a monolithic front, without discrepancies.

But this does not, in theory, prejudge what will happen when the legal status of the facts is discussed.

The rapporteur judge must therefore take into account this objective of unanimity and the desire to avoid dissenting votes as an essential requirement. And the crime and the proportionality or the penalty, to which we have alluded, are fundamental in forging this unanimity.

The fifth reason is of a personal nature. On March 3, Marchena will end the period of five years since he took office as president of the second - or criminal - Chamber of the Supreme Court in 2014. He can, of course, be re-elected for another five years.

But judge Marchena was about to become the president of the Supreme Court and the General Council of the Judiciary (CGPJ) in November 2018 as a result of the agreement between the PSOE and the PP, a presidency frustrated by the WhatsApp forwarded by the Popular spokesman in the Senate, Ignacio Cosidó, in which he told his fellow colleagues that the appointment of Marchena would allow his party to "control the second Chamber from behind". The magistrate withdrew on the spot the moment the news was disseminated.

But the post he was to occupy still awaits a new president. And Marchena could be the candidate again. The PSOE, according to government sources, would not object.

So the rapporteur must rise above all factions. And the "Procés" judgment will be his 'magnum opus'. And that is why, after putting rebellion aside, it can delve into the labyrinth of sedition, conspiracy and attempt. These last two, by the way, are difficult to fit in.